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1971 DIGILAW 9 (GAU)

Dinesh Chandra Nath v. Surendra Chandra Nath

1971-02-12

M.C.PATHAK

body1971
This revision petition has been filed against an order passed by the learned Assistant District Judge, Silchar setting aside the order of the learned Mun­siff restoring a suit dismissed for default. 2. The plaintiffs-petitioners filed 12/65 Title Suit No. --------- in the Court of the 266/65 Sadar Munsiff of Silchar against defendant-Opposite party for declaration of a docu­ment as fraudulent and collusive. The suit was dismissed for default on 7-10-66. An application under Order 9, Rule 9 of the Civil Procedure Code, was filed on behalf of the plaintiff-petitioners. The case was numbered as Misc. Case 250/66 and it was allowed conditionally and the operative portion of the order of the learned Munsiff, dated 14-12-67 is as follows: "It is, therefore, ordered that the case shall stand allowed if the petitioners deposit a cost of Rs. IS/- by 20-12-67 here and in case of default the case shall stand dismiss­ed." The petitioners did not pay the cost by 20-12-67. So on 21-12-67 the learned Mun­siff ordered that since no cost was deposit­ed by the petitioners on or before 20-12-67, the case stood dismissed. The petitioners thereafter filed a petition under Section 151, Civil Procedure Code on 5-1-58 for restora­tion of the revival petition giving reasons for failure to deposit the cost in time. By his order dated 8-1-68 the learned Munsiff considered the reasons for failure on the part of the plaintiffs to deposit cost and re­jected the petition under Section 151, Civil Procedure Code. Thereafter the petitioners filed another application under Order 47, Rule 1 of the Code of Civil Procedure for setting aside the order of dismissal of Misc. Case No. 250/66. The learned Munsiff al­lowed the petition and restored the original suit by his order dated 13-12-68. Against that order the defendant-Opposite party pre­ferred an appeal before the learned Assis­tant District Judge, Cachar and that appeal was numbered as Misc. Appeal No. 9 of 1969. 3. The learned Assistant District Judge by his judgment and order dated 4-8-69 allowed the appeal and set aside the impugned order of the learned Munsiff. The present revision petition is directed against the order of the learned Assistant District Judge. 4. Appeal No. 9 of 1969. 3. The learned Assistant District Judge by his judgment and order dated 4-8-69 allowed the appeal and set aside the impugned order of the learned Munsiff. The present revision petition is directed against the order of the learned Assistant District Judge. 4. The learned Assistant District Judge has found that when the petitioners defaulted in payment of the cost, the appli­cation for revival stood dismissed and there­fore the Court had no jurisdiction to extend time under Section 148 Civil Procedure Code and also to entertain the petition under Order 47, Rule 1 of the Code of Civil Procedure. 5. Two points that arise for consi­deration in this case are: (1) whether the learned Munsiff had jurisdiction to extend time for payment of the cost in view of his orders dated 14-12-67 and 21-12-67 and (2) whether the application under Order 47, Rule 1, Civil Procedure Code for review of such an order lay. 6. The learned Munsiff disposed of the revival petition under Order 9, Rule 9, Civil Procedure Code by allowing the peti­tion and restoring the suit on condition that the plaintiff-petitioners must pay the cost of Rs. IS/- by 20-12-67. In the order he clearly stated that if the plaintiff-petitioners failed to pay the cost within the fixed time, the revival petition would stand dismissed. It is settled law that if a suit is revived on condition of payment of cost within a fix­ed time and if the order further says that if the cost is not paid within the fixed time, the application for revival of the suit shall stand dismissed, then in such case, on de­fault of the petitioner to make payment of cost within the fixed time, the order of dis­missal of the petition takes effect automati­cally. In the instant case, on the default of the petitioners the order of dismissal took effect automatically. Moreover the learned Munsiff passed another order on 21-12-67 dismissing the petition for revival. In the circumstances the Court became functus officio thereafter and there was no scope for extension of the time for payment of the cost as contemplated under Section 148, Civil Procedure Code. This view is in ac­cordance with the decision in Nasar Saheb v. Nabi Saheb, AIR 1957 Andh Pra 780; Balakrishna Ayyar v. Parvathammal, AIR 1928 Mad 154; Tarapada Sarkar v. Nepal Gazi, AIR 1965 Cal 354 . This view is in ac­cordance with the decision in Nasar Saheb v. Nabi Saheb, AIR 1957 Andh Pra 780; Balakrishna Ayyar v. Parvathammal, AIR 1928 Mad 154; Tarapada Sarkar v. Nepal Gazi, AIR 1965 Cal 354 . The learned Mun­siff therefore had no jurisdiction to extend time for depositing the cost. 7. Mr. K. P. Bhattacharjee, the learned Counsel for the petitioners submits that the Court had jurisdiction to review the matter under Order 47, Rule 1, Civil Pro­cedure Code. The question of jurisdiction under Order 47, R. 1, Civil Procedure Code need not be considered for disposal of the present case. In the instant case the peti­tioners applied under Section 151, Civil Procedure Code for setting aside the order of dismissal of the revival petition alleging certain grounds for his inability to deposit the cost within time. It appears that the learned Munsiff considered the grounds al­leged in the petition under Section 151, Civil Procedure Code and he did not accept those grounds as sufficient and therefore Be rejected that petition. Thereafter on the same grounds the application under O. 47, Rule 1 was filed and in the circumstances there could not be any review of the earlier order on the same grounds. 8. In the circumstances, I find that the order of the learned Munsiff restoring the suit was correctly set aside by the learn­ed Assistant District Judge though he gave some other reasons also for the same. In the result, this petition fails and is rejected. There will, however, be no order as to costs. Petition dismissed.